• Lillian Artz
• Zubeida Dangor
• Lesley Ann Foster
• Marleen Hasselerharm
• Rashida Manjoo
• Elizabeth Musaba
• Anusanthee Pillay
• Spiwe Takura

Violence against women is a human rights violation. As a signatory to the Convention for the Elimination of all Forms of Discrimination Against Women (CEDAW), the South African government has to guarantee the right of women to be protected against violence through its policies, plans of action, departments and programs. While the government has recognized the seriousness of this problem, it has not adequately fulfilled its responsibilities in this Women's Convention, in particular General Recommendations 12, 14 and 19.

Even though there is recognition of the problem of violence against women, the level of implementation does not match the need. No strategic and coordinated action has been undertaken by the South African government to eradicate violence against women nor have sufficient support services been put in place to assist victims/survivors of rape, domestic violence, sexual assault, sexual harassment, etc. The Department of Justice has made the most positive attempts to address violence against women. Legislation is being drafted to address various aspects of gender-based violence. In addition, the Department of Education has completed a comprehensive gender-analysis within its department. This could form the basis for the development of policies and programmes which benefit women and girl children.

It must be pointed out that resource allocations to departments both in terms of human and financial resources is limited and this affects the pace and extent of the work done.

The South African government has failed to translate political commitments into sustainable programmes. In the absence of a co-ordinated, integrated, strategic policy and budget allocations, the government will continue to fail in addressing violence against women effectively. The government needs to understand that you cannot legislate for change. There needs to be consequences put in place which deter perpetrators. Furthermore, government needs to ensure, through support of NGOs, that there are consequences at the community level which indicate that violence against women is not acceptable.

In order to eradicate violence against women in South Africa as well as to comply with the commitments set out in CEDAW, it is essential to mainstream gender into all government policies. Priority areas for action and recommendation include ongoing reform of legislation, provision of widespread services such as shelters and victim assistance programmes, systematic training, public awareness raising and conducting research into prevalence and costs of violence against women. In addition, each government department must allocate budgets to programmes combating violence against women. The South African government must not only show the political interest to make changes, but must also take the responsibility for these changes to occur. This responsibility involves more than making legislative changes. It also entails government actively tackling the economic, social, cultural and political facets of violence against women and providing adequate resources for these processes and programmes.

General Recommendation 14 concerns female genital mutilation and aims at eradicating these practices

General Recommendation 19 states that gender-based violence, which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions, is discrimination according to Article 1 of CEDAW. These rights and freedoms include:

1. The right to life;
2. The right not to be subject to torture or to cruel, inhuman or degrading treatment or punishment;
3. The right to equal protection according to humanitarian norms in time of international or internal armed conflict:
4. The right to liberty and security of person;
5. The right to equal protection under the law;
6. The right to equality in the family;
7. The right to the highest standard attainable of physical and mental health;
8. The right to just and favourable conditions of work.

3.2 International Human Rights Law and Constitutional Provisions relating to Violence Against Women

It is unfortunate that the Government Report does not acknowledge the implications of the ratification of CEDAW (and the provisions of international human rights law generally) in the context of violence against women. The report does not examine the implications of the inclusion of the right to freedom from all forms of violence in the Constitution. This is due to a complete lack of insight in the nature of state obligations regarding violence against women on the part of the South African government, as appears from the current government responses to such violence. For further reference see Appendix A.

3.3 Critique Legislation

While we commend the initiatives taken by government Departments, we feel that the assumption by government that once legislation is in place, things will change, is an error. There must be a greater emphasis on implementation with clear guidelines on how to monitor this. Collaboration between government and NGOs must be strengthened. To achieve this, it would partly require government to appropriately acknowledge NGOs contributions in the fight against VAW. Government reports must have clarity as to the amount of resources allocated e.g. to non-legislative initiatives and the public must have access to this information. Presently, many legal provisions such as the cautionary rule and the Prevention of Family Violence Act are being revisited. The benefits of these changes would be long-term. In the meantime though, government must attend to the immediate need for services, such as shelters, social security benefits, setting up of victim assistance programmes at all courts and police stations, and the training of service providers to name but a few.

3.3.1 Criminal Law

The Criminal Law Amendment Act (1991) indicates that there are special provisions made for young witnesses, such as the allowance of "…the witness to give evidence through an intermediary" (SA govt. report page 17-4). This provision is only known to work effectively in some areas of Johannesburg and Cape Town, while in the rest of the country many of the cases drag on due to the courts not working with the social workers who act as intermediaries and who are therefore not available to the witnesses or complainants on the day of the trial. In addition, the intermediary system/one way mirror system is not a reality in all courts across the country. Having one facility in a court means that only a limited number of victims/survivors are assisted.

The Criminal Procedure Amendment Act (1996) is supposed to "…assist women and children as it is primarily aimed at eliminating delays in the finalisation of trials." There are numerous cases that have been delayed for over two years due to postponements, such as the accused is absent, the accused attorney is absent or late, the magistrate is on study leave, etc.

Case1: Miriam instituted divorce proceedings in February 1997 (separated in 1994; the church asked her not to get divorced and to wait in case the husband comes back). From 1997, Westgate court keeps remanding the case because the accused is absent, although summons has been served 4 or 5 times.

Case 2: A rape case since 1995 has still not been finalised. The reasons have been that the state is not prepared, the attorney is not prepared for the court case or that another magistrate had to be found because of sick leave.

3.3.2 Sentencing procedures

Sentencing jurisdiction is determined (inter alia) by which court a particular case is heard in. Rape cases may be heard by either the High Court (where a judge presides) or in regional (magistrates) court. The maximum sentence of imprisonment which may be imposed in regional court - which is on a 'lower' level than High Court - is a period of 10 years. Cases are not heard in the High Court unless they are deemed 'serious' (for example, when a firearm is used). The fact that the Department of Justice is now promoting legislation which will oblige presiding officers to impose compulsory minimum sentences for serious offences such as rape where a firearm or other dangerous weapons are used is a direct indication of the fact that the government does not view rape itself as dangerous, thereby demonstrating the fact that there is no clear understanding of how devastating rape is to the victim/survivor. It implies degrees of rape and suggests that some instances of rape are supposed to be "slightly serious". This perception is enforced by the government report (page 17-4) which states that "amendments of 1995 have already strengthened the authority of a court to refuse bail in rape cases, especially where a weapon is used or when a gang rape occurs. The Department is now promoting legislation which will oblige presiding officers to impose compulsory minimum sentences for serious offences such as rape where a firearm or other dangerous weapons [are] used."

Case 3: Lebho was raped by at least 2 men but the case was not brought before the High Court. The fact that it was decided to prosecute this case in the magistrate's court meant that the maximum sentence the perpetrator could receive was ten years, which was in fact the sentence meted out.

In general it can be concluded that sentences regarding crimes against women do not match the crime.

Case 4: In a recent attempted murder case a female Magistrate commented "the real issue is not the fact that you committed these crimes, but why. Against the background presented at the court there is nothing to say why you committed these crimes." The Magistrate was attempting to find a motive in a case where the issue of the husbands cold and remorseless personality and the fact that the marriage was not romantic or a bed of roses was raised during evidence. He was convicted and sentenced to an effective 7 years for conspiring and attempting to kill his wife twice in the space of two weeks (Sunday Tribune, 20 March 1998). This case is an illustration of a complete lack of gender analysis and understanding of the dynamics of abusive relationships.

3.3.3 Bail procedures

The claim that the Amendments of 1995 have "strengthened the authority of a court to refuse bail in rape cases" (SA govt. report page 17-4) is highly questionable. However, the most recent bail amendments are contained in Act 85 of 1997 which, broadly speaking provides that where an accused is charged with certain offences (committed under prescribed circumstances), the accused will be detained in custody unless s/he satisfies the court that exceptional circumstances exist why s/he should be released. The offences which are relevant here as regards VAW are rape, where a dangerous weapon or firearm is used; rape when accompanied by an assault with intent to do grievous bodily harm and when the offence was committed in connection with or formed part of the commission of the offence of housebreaking with aggravating circumstances. The seriousness of rape, however, is still based on whether the commission of the rape was done with a weapon.

Case 5: There was a national outcry at the state's failure to protect a seven-year-old girl who was raped by a man, who was let out on bail. The day before the she was due to give evidence against him he killed her. It subsequently transpired that the prosecutor in the bail application had agreed to bail without even having read the case file or consulted with the investigating (police) officers. There are no provisions in either the 1995 or 1997 amendments to ensure that state officials comply with their duties in the implementation of the legislation.

3.3.4 Cautionary rule

The issue of the cautionary rule was recently addressed in the Supreme Court of Appeal in the case of Jackson vs. the State (1998). The court held that "… the cautionary rule in sexual offences is based on an irrational and outdated perception. It unjustly stereotypes complainants in sexual assault cases (overwhelmingly women) as particularly unreliable" (Olivier, J.A.). The court decided that the courts should not automatically as a matter of course apply the rule, but should only apply caution in all criminal cases (not only sexual offences) where there has been evidence led that the witness may be unreliable. Hence, the cautionary rule may still be applied. The Supreme Court of Appeal said in this case, that "the evidence in a particular case might call for a 'cautionary approach' but that this was a far cry from the previous situation where a general cautionary rule applied against all women who claimed they had been raped." (Sunday Times, 22 March 1998)

3.3.5 Implementation of legislation

The judgement quoted in the government report on page 17-5, suggesting that "the Appeal Court has made it clear that rapist should expect no leniency from now on", was made by a progressive judge who is now a judge in the Constitutional Court. This is a minority viewpoint in the judiciary. In fact, implementation of legislation is obstructed by the subjective interpretation and use of discretion of the police and judicial officers. For example, police rarely confiscate firearms and are reluctant to arrest perpetrators. When women apply for interdicts in terms of the Prevention of Family Violence Act, magistrates are often reluctant to grant the interdict. Although the Act provides for this, they seldom authorise the eviction of the perpetrator from the shared home. Instead women (in most cases with young children) are expected to leave the home.

Case 6: Anne's husband has battered her for the past 19 years, beating kicking, burning and stabbing her. She applied for an interdict in 1996 and was refused because she was still living with her husband. The fear of ongoing abuse prompted Anne to leave the relationship. But after the divorce, he kept on assaulting her and destroying her property. Recently she has been sexually assaulted by her husband and laid a charge against him. Despite the ongoing abuse, her application for an interdict has been refused, on the ground that Anne was not living with her husband . The clerk even suggested that he would speak to her husband. Only after April 1997 and after intervention by the Nisaa Institute for Women's Development, did Anne obtain an interdict.

3.3.6 Prevention of Family Violence Act

4.3.2 Service Provision

The South African government should

1. provide health and counselling facilities staffed by trained personnel where women can report cases of abuse, undergo examination and treatment or be given emotional/family counselling;
2. provide accessible and affordable legal services with paralegals to assist women who wish to claim their rights;
3. provide appropriate training for the police, social workers, prosecutors, magistrates, judges, district surgeons and other people involved in dealing with cases of abuse;
4. set up accessible shelters for victims/survivors of rape, domestic violence and other forms of abuse as a matter of priority; along with this, affordable secure housing should also be provided for women;
5. provide women with safe transport networks.

4.3.3 Education & Training

1. Relevant government departments should come up with guidelines on VAW similar to the National Policy Guidelines for victims of sexual violence;
2. Systematic training of all relevant role players as well as service providers is strongly recommended;
3. The training should happen with relevant role players working in the area - NGOs working with VAW. Exposure to different types of training certainly does help as individual participants, particularly adults respond to a range of methodologies. Participatory approach is recommended to facilitators;
4. Adequate resources for training need to be allocated by government.

4.3.4 Public Awareness

The South African government should set up a national planning meeting with NGOs across the country to develop a 3 to 5 year strategic plan of action to raise public awareness on violence against women. These campaigns should be co-ordinated in line with the prioritised issues on violence against women.

4.35 Fiscal Commitment

The South African government should begin to show their commitment to shifts in policy, programmes and service delivery to victims/survivors of VAW by shifting current budgets to accommodate them. While the Departments of Justice and Safety & Security, for example, have recognised VAW as a 'priority area', neither departments has re-distributed or allocated appropriate funds to ensure their policies are deliverable. Without developing specific budget items that focus on women, promises of 'effective change' for women in South Africa are vacuous.

4.3.6 Research

The South African government should:

1. conduct/ensure National Prevalence studies on violence against women
2. conduct/ensure research into the costs of violence against women to the South African economy

It is unfortunate that the Government Report does not acknowledge the implications of the ratification of CEDAW (and the provisions of international human rights law generally) in the context of violence against women. It also fails to examine the implications of the inclusion of the right to freedom from all forms of violence in the Constitution. This is due to a complete lack of insight in the nature of state obligations regarding violence against women on the part of the South African government, as appears from the current government responses to such violence. These obligations arise from a number of sources:

1. State obligations in terms of CEDAW

In terms of international law, the South African government, having ratified CEDAW, is bound by its provisions, irrespective of whether specific provisions have been incorporated in national law.

Note - the Government Report states: "Many of CEDAW's provisions have not yet been directly included in South African laws". It fails to explain which provisions have been included, what the effect of non-incorporation is and why such incorporation has not taken place.

The Committee on the Elimination of Discrimination against Women has indicated, with reference to Recommendation 19, that states may be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and to provide compensation. This is in accordance with general principles of international human rights law relating to the imposition of duties on states. The Committee has also found that in order to fulfill their duties under the Women's Convention, states must take all measures necessary to provide effective protection to women, including comprehensive legal, preventive and other measures. (See also General Recommendation 12, which requires states parties to act to protect women against violence of any kind.)

This failure to recognise this duty to "take all measures necessary to provide effective protection to women" has a direct impact on state action, and goes a long way towards explaining some of the problems identified by this shadow report, such as, for example, a failure to address present shortcomings around victim compensation. (The Government Report does not discuss the issue of victim compensation in the context of violence against women.)

2. State Obligations arising from the South African Constitution

It is significant that the inclusion of the right to freedom from violence as an aspect of the right to security receives only scant attention in the Government Report. In fact, it is not even mentioned in the first discussion of Constitutional provisions (see discussion of Article 1). This is an early indication of a lack of understanding of the potentially far-reaching impact of the inclusion of this right in the Bill of Rights.

The Report also fails to recognise that the inclusion of this right in the Constitution has far-reaching implications for state accountability - especially when section 12(1)( c ) is read with section 7(2) of the Constitution, which enjoins the state to 'promote, protect, fulfill and respect the rights in the Bill of Rights'.

There are no indications in the Government Report of an awareness of this duty to protect and promote (in the broadest sense of the term) the right to freedom from violence. This is glaringly apparent from the description of piecemeal, unstructured government responses to violence against women, evidenced by the apparently unmotivated focus on certain initiatives - to the exclusion of others which do fit into a framework of obligations around protection and promotion of this right.

The purpose of the Government Report, i.e. to furnish the Committee on Elimination of Discrimination Against Women with information on the progress of the SA government in compliance with its obligations under CEDAW, is therefore lost. This failure to adhere to the rationale and requirements for reporting is also clear if we note that the Government Report, in its section dealing with violence against women (significantly entitled 'gender violence' in South Africa' rather than 'violence against women in South Africa'), fails to follow the Committee on Elimination of Discrimination Against Women's General Recommendation 12, which requires states parties to report on legislation in force to protect women against violence, including sexual harassment in the workplace. (The Government Report does not even refer to sexual harassment in the section on violence against women.) States are also required to include statistical data on the incidence of violence against women - this is conspicuously absent from the Government Report.

Regarding the Prevention of Family Violence Act 1993, we acknowledge the existence of the Committee that has been established to develop a Domestic Violence Bill. However, we are concerned that not all critical shortcomings of the Act will be efficiently addressed.

Concerns regarding the Prevention of Family Violence Act include:

• Interdicts in terms of art 133 violates the South African Constitution in a number of ways e.g. a final interdict is granted without hearing the other side; gay relationships are excluded and hence violates the equality clause.
• The Act states that "…an interdict can prevent the abuser from entering the common home," (SA Report page 25) when it actually is not used that way. The Magistrates do not remove the abuser from the common home, but if the victim leaves the home they will issue an interdict to keep the abuser from accosting here wherever she moves.
• Application is limited to people who are or were married or living together - hence excludes other members of family who are experiencing domestic violence.
• Application has to be made in the jurisdiction of the applicant's home - this creates problems when women flee their homes.
• The interdict is only valid in the jurisdiction that is granted and not throughout the country.
• Service is either by the Clerk of the court (if the perpetrator is present) or the sheriff (who charges per kilometer traveled). This cost is a hardship for many women. The applicant can ask the court for a waiver of fees and, even though this may be granted, the practise is that such interdicts take up to 2 weeks to be served as the sheriff insists on payment upfront from the Justice Department.
• Problems regarding the police: Application forms are unavailable from police stations. Also lack of knowledge of the law by the police and lack of training of police in handling such sensitive cases.
• Domestic violence is not defined in the Act - hence judicial officers have different interpretations when applications are made, e.g. interdicts are sometimes granted when threats are made and sometimes they are refused in such cases. In addition, acts such as stalking, harassment, intimidation and economic abuse do not serve as grounds for the granting of interdicts.
• After hours applications for interdicts are extremely difficult.
• The sentencing options available for violation of the interdict are limited to a fine, a term in prison or both. There are no provisions for rehabilitation or counselling options within the Prevention of Family Violence Act. However, section 297 of the Criminal Procedures Act does provide for these options, but this section is rarely referred to in cases that fall within the Prevention of Family Violence Act.
• The Act does not specifically allow for the exclusion of the perpetrator from the joint household - hence exclusion orders are rarely granted.
• Domestic violence is not legislated as a separate category of crime - hence the general laws of assault apply and assaults between spouses are usually treated as a private matter by the police.
• The judicial officer granting the interdict has no power to simultaneously make interim access, custody, maintenance or restitution orders.

Name	Organisation	Province	Details
Artz, Lillian Researcher	Institute of Criminology University of Cape Town	Western Cape	T: 021 - 650 2981 F: 021 - 650 3790 E: crimla@protem.uct.ac.za
Combrinck, Helene Researcher	Community Law Centre University of Western Cape	Western Cape	T: 021 - 959 3708 F: 021 - 959 2411 E: hcombrin@law1.uwc.ac.za
Dangor, Zubeida Director	NISAA Institute for Women's Development	Gauteng	T: 011 - 854 58 04 F: 011 - 854 5718 E: zubeda@nisaa.org.za
Davis, Sheri Researcher	Clark Atlanta University Women's Training Programme	United States	E: Defartist@aol.com
Foster, Lesley Ann Executive Director	Masimanyane Women's Support Centre	Eastern Cape	T: 0431 - 439 169 F: 0431 - 439 176 E: maswsc@iafrica.com
Hasselerharm,Marleen Researcher	Masimanyane Women's Support Centre Netherlands institute on Southern Africa (NiZA)	Eastern Cape Holland	T: 0431 - 439 169 F: 0431 - 439 176 E: maswsc@iafrica.com
Jacobs, Tanya Researcher	Women's Health Research Unit University of Cape Town	Western Cape	T: 021 - 406 6580 E: tanyaj@anat.uct.ac.za
Manjoo, Rashida Advocate of High Court Co-ordinator	Campus Law Clinic University of Natal KZN Network on VAW	Kwazulu Natal	T: 031 - 202 6923 F: 031 - 211 883
Musaba, Dr. Elizabeth Clinical Manager	Masimanyane Women's Support Centre	Eastern Cape	T: (043) 743-9169 Fax: (043) 743-9176 E: maswsc@iafrica.com
Pillay, Anusanthee Student Advisor	WITS Crisis Centre	Gauteng	T: 011 - 716 3294 F: 011 - 339 7889 E:129anu@cosmos.wits.ac.za
Pillay, Karrisha Researcher	Community Law Centre University of Western Cape	Western Cape	T: 021 - 959 3708 F: 021 - 959 2411 E: karrisha@mweb.co.za
Pithey, Bronwyn Legal Advisor	Rape Crisis Cape Town	Western Cape	T: 021 - 471 467 F: 021 - 475 458 E: rpcrisis@iafrica.com
Takura, Spiwe Trainer	Tshwaranang Legal Advocacy Center	Gauteng	T/F: 011 - 614 4477

Endorsed by:

T.L. Wessels Campus Law Clinic, University of Natal Kwazulu Natal

S. Dawood Gender Studies Department, University of Natal Kwazulu Natal

C. Gaitskell SA Women's Shelter Movement Kwazulu Natal

Y. Bacus KZN Network on Violence Against Women Kwazulu Natal